Obama's Paradoxical Presidency

Note:  This blog was originally published in the August 8, 2013 edition of Politics in Minnesota.

Barack Obama’s presidency is a paradox.  At no point has a president been so powerful yet so weak.  He is a brilliant orator, capable of inspiring millions, but horrible at influencing Congress. His first term legislative record was a laundry list of major accomplishments, his second term is already over.  He wanted to be a post-partisan, post-racial president, but all the polls suggest he is one of the most polarizing modern presidents.  How do we explain the president that Barack Obama became, and understand the one that many hoped he would be but failed to achieve?

            First, consider the president that everyone thought Obama would be.  He was to be the candidate of change.  He was to be the president of peace, the anti-Bush who would end the wars in Iraq and Afghanistan.  He would end torture, close Guantanamo Bay, and bring peace to the Middle East.  He would do that while consulting with allies and not going it alone.  He was also to be the president of universal health care, more alternative energies, and fixing the economy in a way that would produce more good paying jobs in the green economy of the future. 

            Obama promised a lot, and he delivered, sort of.  We sort of have universal health care with Obamacare, yet it is not clear how well it will work, whether it will save money, or really lead to a change in American health.  The economy is sort of on the mends.  Millions of new jobs have been created, but we are still years from recovering all the losses from 2008.  Wall Street has rebounded, but the gap between the rich and is at record levels.  Home values have returned for many, but for millions others their mortgages are still underwater.  Corporations have record profits, but salaries and family incomes  are flat or lower than they were before he became president.  We are officially out of Iraq and close to the same with Afghanistan, but one can hardly say that mission was really accomplished with either.  The list could go on.  Obama’s accomplishments are significant, but so many of them since incomplete or fragile.

            Conversely, who would have ever thought Obama would have been the president to deport more individuals than any other president in history.  He has prosecuted more leaks than any other president. He asserted the right to use drones to kill Americans, and he vigorously defends a vast network of NSA spying on Americans.  He bailed out the banks but did little for homeowners.  Dodd-Frank restructured Wall Street but not a lot for Main Street. His green energy economy went nowhere and most people expect will he endorse the Keystone Pipeline.  This is on the heels of him wanting to push more nuclear and “clean coal” technology.  It now even looks like he will place Larry Summers instead of Janet Yellen at the head of the Federal Reserve Board.

            To his defenders many argue that Obama is still cleaning up Bush’s mess.  To liberals he has done no more than warm over Bush era policies.  To conservatives, he is a detested socialist.  To watch Obama now one gets the sense that he has given up on his presidency and that his second term is already over.  He still offers lofty rhetoric about the economy and jobs but no one thinks he can deliver because of Republicans in Congress.  True they have fought him all the way but Obama has yet to learn how to negotiate with them.  He does not scare them and he cannot seem to beat a dysfunctional and unpopular Republican Party that has fallen out of the ideological mainstream for most Americans.  And now it is also clear that eight months into his second term, he has lost the support of his own party.  Democrats want Yellen not Summers, they are critical of the NSA but Obama will not budge.  His party does not want to negotiate away Social Security and other entitlement programs, Obama seems almost eager to put them on the table to get a grand budget deal. Obama looks increasingly irrelevant politically. 

            So how did it all happen? Why has Obama always cast his eyes to the side when he looks history or destiny in the eye?  Richard Neustadt once said that the power of the presidency is the power to persuade.  This power is a combination of many things, including party support, electoral  majorities, public opinion, and a host of other factors.  But the presidency is more than the formal powers of Article II of the Constitution.  It is also a product of the person who is he president.  More particularly, presidencies are defined in part by the character of the person who is president.

            In  Presidential Character, political scientist James David Barber sought to construct a means to describe and categorize presidents.  The basic problem we all face is to make an accurate guess to what type of president a candidate will be.  According to Barber, a person's personality, psychology, or "character" shapes performance and thus knowing something about a president's character will tell us about possible future performance.  In effect, the psychological character of the president melds with the formal office of the presidency to determine governing style.

            What types of presidential characters are there?  Barber thinks we can make that assessment along two dimensions.  There is activity-passivity:  How much energy will a person invest in the Presidency?  Second there is a positive-negative affect:  How does one feel about what one does? Thus, these two dimensions allow for four different types of presidents each having specific examples.   Early in his presidency Obama was an active-positive.  This is the type of president John Kennedy, Franklin Roosevelt, and Thomas Jefferson were. These are presidents as doers–they are results-orientated, flexible, and demonstrate a sense of growth and happiness in their job.  This is less the Obama we now see.  He displays more the rigidity of active-negative presidents such as Richard Nixon, or the withdrawn passive-negative dimension of Calvin Coolidge, or maybe even the passive-positive of Warren Harding, a president unwilling or unable to act or make decisions.

            It is not clear how to classify the current Obama as president but he certainly is not the active-positive one he once was.  Moreover, his lack of legislative and administrative experience prior to being president is showing, and his refusal to consult but a handful or close advisors has prevented him from changing his governing style.  Whatever energy or character he does have, the clock of his presidency continues to tick, pushing him further and further into a second term lame duck status.  Obama’s legacy now is almost beyond his control and absent a surprise, he will leave office a paradox for what he did, could have done, and what he became as president.

American Democracy and the NSA

Imagine a government that spies on its citizens, often without warrants. A government that holds secret court hearings, or a government that asserts the right to detain and jail citizens indefinitely, in some cases in distant places away from family and lawyers. Or a government that asserts the right to hunt down and execute its citizens on suspicion of being the enemy.  Such a government we would describe as lawless, standing in contempt of human rights and individual liberties. It is a government some would describe as lawless. This is the government that some like Senators Ron Wyden, Rand Paul, and others think is beginning to emerge in the United States as a result of stories about NSA surveillance of telephone calls and e-mail messages. It is a government, they say, that needs to confine and define the discretion of public officials to prevent the violation of individual rights.
    The hallmark of a free society is a rule of law that limits the discretion of public officials to violate individual rights.  A constitutional democracy is one where the government is subject to legal limits, a respect for what legal philosopher Lon Fuller once called an “inner morality of law” that recognizes not simply formal procedural regularity but what political theorist David Dyzenhaus calls a substantive respect for freedom.  Nazi Germany may have had procedural regularity, but it lacked the real respect for rights.
    Yes, public officials need discretion to make choices, but those choices cannot be made with unbridled authority. To a large extent this was the criticism of the American colonies when they asserted their independence from England in 1776. The Declaration of Independence catalogs a list of grievances and abuses of rights by King George III, including a failure to respect “laws for establishing judiciary powers.”   There needs to be a balance established with the law, as publicly debated, defining the scope of discretion that public officials may exercise.
    The American constitutional system was a reaction to the abuses by the King. It places both procedural and substantive limits on what the government can do. The Due Process and Equal Protection clauses are there to prevent arbitrary and capricious decisions and to ensure that every person is treated the same. The Bill of Rights places a substantive limit on what the government can do to people (may not abridge freedom of speech), and it demands, as stated in the Fourth Amendment, that the government needs to have particularized suspicion to search, detain, or arrest individuals. One cannot have a Captain Louis Renault (from the movie Casablanca) “round up the usual suspects’ approach to investigating crimes.
    But to many, 9-11 changed many things, including government respect for constitutional limits on its powers when it comes to respect for individual rights. It began with the Bush administration and continues under Obama.  Recent revelations of the NSA surveillance programs tracking telephone numbers and Internet data, along with the US Postal service photographing each piece of mail smack too much of an Orwellian Big Brother. These actions are taking place without warrants, or with warrants issued in secret court hearings by a tribunal that rarely denies a government request. 
    This news comes on top of what we have known for years that the federal government, dating back to the Bush Administration, has been monitoring phone calls, that America citizens along with foreign nationals were held in Guantanamo Bay, or rendered to secret CIA facilities abroad and tortured, force-fed, and often detained for years without access to legal counsel or opportunity to appear before a judge. Or that the president now asserts the right to use drones to kill Americans abroad suspected of being terrorists, without respect for due process or proof of guilt.
    The justification for all this is national security.  Perhaps we are a safer nation for all this but we do not know.  It is the same government officials whom the law is supposed to restrain who are making the case for why their actions are justified. We are asked by Obama and the NSA to trust the government, or to accept that the ends justify the means, but how are we to judge whether these actions are justified if we don't even know about them unless individuals such as Snowden leak or whistle blow?
    This is not what a democratic government is supposed to do. Decisions about use of government authority to maintain national security should be debated in an open and transparent fashion. The government should be required, in an open court and subject to public scrutiny, to justify why it needs to monitor communications among its citizens, demonstrating that it has met the constitutional burden of particularized suspicion. This is what Americans fought a war of independence for, and it is supposedly what separates the United States from undemocratic countries. Limiting discretion to protect rights is what the law is supposed to do, it is why the law matters.

After thoughts

Some quick thoughts on a few other items in the news.

1.  Obama and his own Democrats seem to be parting company. Most Democrats seem skeptical of the NSA spying program and they also prefer Janet Yellen to Larry Summers. It seems interesting that so early in Obama’s second term that members of his own party in Congress perceive their political interests to be increasing distinct from that of the president.

2.  Municipal power for Minneapolis? There is a powerful case for a municipal utility. Generally they have lower rates than investor-owner ones. But this is not the only argument that supporters should give. They need to push the arguments for how public utilities have incentives to encourage alternative energy sources and decreased usage. Moreover, supporters need to do a better job in arguing how a public facility can do a better job with maintenance, repairs, and emergencies. In the short term Xcel Energy may have the upper hand here. Overall, the case needs to be made to show how replacing a public monopoly with a private one will be better. Perhaps two ideas going forward should be considered. First, how about competition between public and a municipal utility?   Second, how about a jointly operated Minneapolis-St Paul municipal power plant? It would be able to achieve economies of scale that one city could not.

3.  Julianne Ortman for Senate? It will be a tough road for her to beat Franken. He has money and good approval ratings and a national base to support him. The RNC does not perceive him as easy a win as picking up other Democratic Senate seats across the USA. Also, what is Ortman’s narrative to victory?

4.  Same-sex marriage legal in Minnesota. Opponents vow to target legislators who supported it and repeal the law. The best thing to happen to the GOP was to legalize same-sex marriage. It is now behind them and they can concentrate on other messages, if they can find one besides being against everything.

5.  Finally, the other day I received a Facebook friend request from a person I did not know. Her profile said that she was “religiously conservative and worried that  the country had lost God we were on the wrong track.”  I thought about it for a moment and thought about what she meant?  Did she mean the country was on the right track when we had slavery? When we persecuted gays and lesbians? When we discriminated against women?  Or when we were in the middle of the Cold War? Or did she mean we needed to get back to an America that busted unions, denied help to the poor, and persecuted those who dissented or took unorthodox political positions?

Bob Dylan once wrote a song about those who spoke of God on their side. I am not always sure that America was going in the right direction even when we did have God.

Obama's Constitution

            Barack Obama’s constitutionalism is not quite what anyone would have expected.  Far from embracing bold liberal notions of the Constitution and the Bill of Rights, much of his legal philosophy seems at home with his predecessor George Bush and Republicans.

            Ostensibly a liberal Democrat, one would have thought that Barack Obama would have been a civil libertarian, respectful of individual rights.  One would have also expected that he would have sought to use national power to its fullest to fulfill his agenda.  As a lawyer and former constitutional law professor, the belief was that he understood the law and would see how moving quickly and aggressively to fill the federal bench with his judicial nominees would be critical to securing his legal agenda and undoing the legal legacy that George Bush left.

            Such expectations were nurtured by presidential candidate Obama.  He sharply criticized the Bush administration for its support of torture and disregard for international law.  He promised to close Guantanamo Bay, and otherwise end the illegal operations of the war on terror and the presidential excesses of his predecessor.  Yet Obama has not turned out to be a constitutional liberal.

            To his credit, in the opening days of his presidency Obama did move to undo many of the practices of the Bush administration that he campaigned against.  He repealed legal opinions supporting torture and in his inaugural speech he committed his administration to transferring prisoners out of Gitmo and to closing the facility.  But Congress fought him on this initiative and Republicans have successfully stalled or filibustered judicial and other nominees.  But even accepting both as excuses, Obama’s constitutionalism is surprising.

            The Obama administration insists that it is within its constitutional authority to use drones to kill American citizens and to intercept and track telephone calls and internet traffic under the Foreign Intelligence Surveillance Act and through the NSA Prism program.  Obama administration legal memos, some of which have yet to come to light, so far seem to rely upon the same assertions  about extra-constitutional presidential power as commander-in-chief or upon the same congressional ascent under the post-9/11 Authorization to Use Military Force that Bush invoked. The legal memo on drones makes the same legal contortions about presidential power that the John Yoo memo did when it came to torture.  Obama has used these legal rationales and the most extensive authority given to him under the Patriot Act and FISA to justify policies disregarding basic civil rights and liberties.

            His administration justifies the killing of American citizens without proof of guilt in court.  There is no regard to the Fourth Amendment rights against use of excessive force, no due process to contest a decision to make unilateral execution decisions.  His snooping on American citizens is done without warrant, or at least one with proof of particularized suspicion as required under the Fourth Amendment.  His administration's initial refusal to read the Boston Marathon Bomber his Miranda rights exploited a questionable legal loophole and ignored the Fifth Amendment.  And do not forget that the IRS targeting of political groups is also a violation of the First Amendment.

            But additionally the Obama administration has rode roughshod over many other parts of the Constitution.  Where is the respect for the First Amendment freedom of the press when comes to getting secret warrants to search reporters telephone conversations because they reported on news embarrassing to the Obama Administration?  Or where is the respect for First Amendment freedom of speech when it comes to one of the most aggressive administrations on record when it comes to prosecuting leaks and whistleblowers?

            But his constitutional contempt is matched by timidity.  Obama now supports same-sex marriage, but only as he was beginning to run for a second term in office and when the tide of public opinion had apparently shifted on the subject.  It took years for the Obama administration to reach the conclusion that don’t ask, don’t tell was unconstitutional but he never did anything to fight its enforcement.  The same with DOMA–he did eventually argue that it was unconstitutional but continued to enforce the law.  Even in his administration’s arguments before the Supreme Court, Obama has never embraced a view of the Equal Protection clause that fully argues that bans on same-sex marriage are unconstitutional. Nor have we seen Obama argue that the death penalty is unconstitutional, and we have not seen him take an aggressive stance in Court to argue that the Second Amendment decisions holding for an individual right to bear arms were wrong and should be reversed.

            Even with the Affordable Care Act–his signature issue–he has failed to act boldly.  His central justification for its constitutionality rested on the Commerce clause–an argument the Supreme Court ultimately rejected.   In passing the Act Obama capitulated on abortion rights and since its passage has failed to push aggressively on contraception, including until recently his refusal to go along with allowing women under 18 the right to purchase the morning after pill.  It took a federal court ruling his policy to be arbitrary and capricious to get him to change his mind.

            Finally, the Obama administration has moved slowly on judicial appointments, generally eschewing efforts to challenge Senate Republicans to reject his nominees who, for the most part, have been centrists and not liberals.

            Obama’s Constitution is hardly liberal.  It is supportive of strong presidential power resting upon dubious constitutional claims of unilateral authority to act.  It is a constitutionalism devoid of serious respect for individual rights, supportive of the national security state, and surveillance ahead of privacy.  It is a constitutionalism not of the kind one would have expected from him, but instead one that bears more resemblance to that of George Bush than it does of the liberal Democrat some thought he was.